A Profession, If You Can Keep It: How Information Technology and Fading Borders Are Reshaping the Law Marketplace and What We Should Do About It

Stephen Gillers

Volume 63, Issue 4, 953-1022

Technology is changing the way we do business. It has made cross-border trade in goods and services easy. Capital is finding ways to profit from the law business. Lawyers strive to serve clients wherever they need help, including outside their jurisdiction of admission. These changes not only affect how American law firms work, they challenge our system for licensing and regulating lawyers. The traditional geocentric model for regulating the bar, based on physical place of practice, is unstable today because lawyers can practice physically in many places and (virtually) in every place, yet no place in particular.

The next twenty years are likely to see greater transformation in how the American (and world) legal professions are organized and ply their services than was true for any comparable period in history. We have two choices. We can try to impede these forces in order to preserve a familiar and comfortable world that seems to be slipping away. Or we can decide that today’s rules should adapt to accommodate and direct the forces at bay in order to preserve the values of the American bar, which include the efficient delivery of services at reasonable cost. This Article endorses the second goal and describes how we might seek to achieve it.

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Issue Preclusion Effect of Class Certification Orders

Antonio Gidi

Volume 63, Issue 4, 1023-1070

This Article addresses the peculiarities of issue preclusion in class action certification, particularly after the approval of the American Law Institute’s Principles of the Law of Aggregate Litigation in 2010 and the U.S. Supreme Court decision in Smith v. Bayer Corp. in 2011. After discussing the reasons why orders that deny class certification cannot have issue preclusive effect, this Article analyzes proposals to address the problem.

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The Evolution of Unconstitutionality in Sex Offender Registration Laws

Catherine L. Carpenter and Amy E. Beverlin

Volume 63, Issue 4, 1071-1134

More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary.

This Article does not challenge the state’s legislative power to enact sex offender registration laws. Instead, this Article posits that, even if sex offender registration schemes initially were constitutional, serially amended sex offender registration schemes—what this Article dubs super-registration schemes—are not. Their emergence demands reexamination of the traditionally held assumptions that defined original registration laws as civil regulations.

Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much-needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose. Ultimately, this Article is a cautionary tale of legislation that has become unmoored from its constitutional grounding because of its punitive effect and excessive reach.

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Note – A Culture Without Consequences? Redefining Purposeful Availment for Wrongful Online Conduct

Jenny L. Grantz

Volume 63, Issue 4, 1135-1166

The Internet often seems like a place without consequences, where we can share our thoughts without much consideration of whether the things we share might cause harm. And even when Internet users knowingly cause harm to others, many escape civil suit because they are not subject to personal jurisdiction in the plaintiff’s chosen forum. Often this is a result of courts’ fear of creating nationwide jurisdiction in cases involving the Internet, and often the reason given for denying specific jurisdiction is
that it was not reasonably foreseeable to the defendant that they might be haled into court in the plaintiff’s chosen forum. But attempts to limit jurisdiction over wrongful online conduct to those forums in which suit was “reasonably foreseeable” have actually made it more difficult for defendants to know when and where they might be held liable, as cases with the same facts can come to opposite results depending on the test applied. This Note explores the current state of personal jurisdiction for intentional, wrongful acts conducted over the Internet, ultimately concluding that courts must create a better test for whether specific jurisdiction exists in these cases. Only when courts focus on the defendant’s knowledge and intent with regard to the plaintiff can they create fair outcomes in individual cases and ensure that Internet users understand when and where they will be subject to suit.

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Note – Reducing Civil Litigation Costs by Promoting Technological Innovation: Adopting Standards of Reasonableness in E-Discovery

Kelly Foss

Volume 63, Issue 4, 1167-1196

Discovery costs have ballooned over the last decade, in large part because attorneys must review vast amounts of electronically stored information (“ESI”) for relevancy and privilege and must collect all potentially relevant ESI on which to perform those reviews. Courts can reduce costs associated with reviewing ESI by finding that the use of recently developed search software can be “reasonable” under Federal Rule of Civil Procedure 26(g) and Federal Rule of Evidence 502. Courts also can ultimately reduce costs associated with collecting ESI by taking into account the reasonableness of parties’ prelitigation document-management systems when determining whether to require production of inaccessible ESI at a responding party’s expense. Historically, courts were more likely to require production of inaccessible documents when the responding party had assumed the risks of high production costs by storing its information in a particular manner. In recent years, courts have retreated from this approach; some courts rejected the assumption-of-risk doctrine in favor of considering the reasonableness of the responding party’s document-management policies under the circumstances, while other courts explicitly refused to consider reasonableness. The latter approach has dominated in the courts since the FRCP were amended in 2006. This Note proposes that courts reinstate the reasonableness standard when deciding whether to grant motions to compel or to protect. By doing so, courts will incentivize the implementation of document-management systems that facilitate inexpensive discovery. This proposed approach will also stimulate technological innovation in the document-management software industry, which ultimately will lead to reduced discovery costs.

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